Strader v. United States, 1014.

• Decision Date: 23 August 1934
• Docket Number: No. 1014.,1014.
• Citation: 72 F.2d 589
• Parties: STRADER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

72 F.2d 589 (1934)

STRADER v. UNITED STATES.

No. 1014.

Circuit Court of Appeals, Tenth Circuit.

August 23, 1934.

Charles H. Garnett, of Oklahoma City, Okl. (C. F. Miller, of Oklahoma City, Okl., on the brief), for appellant.

D. E. Hodges, Asst. U. S. Atty., of Oklahoma City, Okl. (William C. Lewis, U. S. Atty., of Oklahoma City, Okl., on the brief), for the United States.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

BRATTON, Circuit Judge.

Appellant, a licensed and practicing physician at Oklahoma City, duly registered with the collector of internal revenue for the district of Oklahoma, was prosecuted under the Harrison Anti-Narcotic Act, as amended. 26 USCA § 696. The indictment contained eleven counts. Each count, except the eighth to which reference will be presently made, charged a sale of morphine sulphate by means of a prescription not issued in good faith and subsequently filled at a drug store. He was convicted on the first, second, third, seventh, eighth, and eleventh counts, and acquitted on the others. Punishment was fixed at eighteen months in the penitentiary and a fine of $250, on each count upon which he was convicted, with provision that the several sentences of confinement should run concurrently. An appeal seasonably perfected brings the case here on review.

A demurrer, interposed to the indictment and the several counts thereof, was overruled. The eighth count charged that appellant wrote a prescription for Clara Robinson with the intent then and there on his part that she should obtain the drug from a druggist upon presentation of the prescription, but it failed to charge that she did in fact obtain the drug from any source. It differs from the other counts in that respect. The mere writing of a prescription with the intent and purpose that the person to whom it is given will obtain a drug is not a violation of the statute. Acquisition of the opiate is required to constitute the completed offense. Aiton v. United States (C. C. A.) 3 F.(2d) 992. The eighth count failed to charge an offense, and the demurrer should have been sustained as to it.

The seventh count charged a sale to Clara Robinson. The undisputed proof showed that the sale was made to her husband. He received the prescription and obtained the drug. She did neither. There was a fatal variance between the charge and the proof, and for that reason the motion for a directed verdict of not guilty should have been sustained as to that count.

Roy F. Bridgess, a federal narcotic agent, obtained three separate prescriptions from appellant. They form the bases for counts 1, 2, and 3 in the indictment. His testimony that he had advance information respecting appellant's sale of prescriptions, obtained through conversations with addicts, is challenged as being hearsay. The court asked the question through which the testimony was elicited, and explained at the time that it was for the purpose of ascertaining whether entrapment was involved. The witness did not detail the statements made to him. He merely said that he had advance information relating to sales. The truth of the information was not an issue, nor was it drawn in question. Whether he received it was a proper subject of proof for the sole purpose of determining whether those sales were made in consequence of a decoy to ensnare appellant, if he were otherwise innocent, into the commission of a crime. Such a question may be investigated on the court's own motion at any stage of the proceedings because proof of its existence requires that the prosecution be ended, as it is against public policy to convict one upon proof obtained in that manner, and, if the court is in doubt, the issue may be submitted to the jury. Sorrells v. United States, 287 U. S. 435, 53 S. Ct. 210, 77 L. Ed. 413, 86 A. L. R. 249.

The court admitted testimony from several witnesses that appellant had furnished them prescriptions other than those described in the indictment, without making any physical examination. Other testimony was admitted tending to show that he had written an excessively large number of prescriptions during the two years immediately preceding his arrest and that he made certain statements concerning them at the time he was arrested. All that evidence is assailed as being foreign to the matters in judgment and prejudicial. Appellant admitted that he gave the several prescriptions set forth in the indictment, but contended that they were issued in the course of his bona fide professional practice, thus placing his good faith squarely in issue. The court expressly limited the testimony of which complaint is now made to its bearing upon his credibility as a witness and the good faith or lack of it with which he issued and sold the prescriptions in question. Ordinarily, proof of other independent offenses is not admissible on the trial of a criminal case, but, if the intent with which the act charged in the indictment was committed becomes an issue, evidence of other similar offenses is proper because it bears upon the intent of the act in question. Wood v. United States, 16 Pet. 342, 10 L. Ed. 987; Butler v. United States (C. C. A.) 53 F.(2d) 800; Minner v. United States (C. C. A.) 57 F.(2d) 506; Samuels v. United States (C. C. A.) 232 F. 536, Ann. Cas. 1917A, 711. The testimony threw light upon appellant's intent; that is, whether the prescriptions were supplied in the legitimate practice of his profession or for the commercialized sale of narcotics, and was correctly admitted. Dysart v. United States (C. C. A.) 270 F. 77, certiorari denied 256 U. S. 694, 41 S. Ct. 535, 65 L. Ed. 1175.

After testifying that he examined the several persons named in the indictment, that in his opinion they were suffering with disease, and that the prescriptions were given to relieve their condition, appellant submitted testimony of three physicians that, in the circumstances shown by his records — called history cards — they considered the prescribing of morphine good professional practice. One of them was asked whether in his opinion one addicted to the use of morphine is a diseased person. The court declined to permit the question to be answered, and observed that the statute prescribes the diseases for which morphine may be prescribed, that it expressly provides that merely being an addict is not a disease, and that the question was not one for expert testimony. Another was asked whether he considered it good professional practice to prescribe ten grains of morphine for a patient upon his first call at the office and upon his statement that he had been using only two or three grains daily. The court sustained an objection, and stated again that the circumstances under which morphine could be supplied was one of law, not for expert opinion. The third testified that he considered addiction to the use of morphine a disease and that it is accompanied by pain. He then was asked...